P. v. >Moreno>

 

 

 

 

 

 

 

 

Filed 5/30/13  P. v. Moreno CA4/2

 

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>

 

FOURTH APPELLATE DISTRICT

 

DIVISION TWO

 

 

 
>

THE PEOPLE,               Plaintiff and Respondent,   v.   JACOB GEORGE MORENO,               Defendant and Appellant.

E056441               (Super.Ct.No. SWF1200936)               OPINION

 

            APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County.  Stephen J.
Gallon, Judge.  Affirmed.

            Jeffrey
S. Kross, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and
Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.

            Defendant
Jacob George Moreno pled guilty to transporting methamphetamine and href="http://www.fearnotlaw.com/">receiving stolen property and was
sentenced, as agreed, to two years in local custody and two years on supervised
release.  In this appeal, defendant
argues: 1) his conflict counsel, appointed more than a month after sentencing
to address defendant’s request to withdraw his plea, was ineffective for not
filing petitions for habeas corpus or coram nobis to challenge the plea; 2) the
court erred in ordering defendant to pay an attorney fee and booking fee; and
3) the condition of his eventual supervised release that he obtain his probation
officer’s approval for his place of residence is unconstitutional.  As discussed below, we affirm the judgment.

>Facts
and Procedure

            On
April 4, 2012, the People
filed a complaint alleging defendant had unlawfully transported methamphetamine
(Health & Saf. Code, § 11379, subd. (a)), possessed methamphetamine for
sale (Health & Saf. Code, § 11378), possessed heroin (Health & Saf.
Code, § 11350) and received stolen property—a license plate (Pen. Code, § 496,
subd. (a)).

            On
April 11, 2012, pursuant to a plea
agreement, defendant pled guilty to the transporting methamphetamine and
receiving stolen property charges in exchange for the People dismissing the
other two charges.  Also pursuant to the
plea agreement, the trial court sentenced defendant to four years for
transporting methamphetamine and a concurrent term of three years for receiving
stolen property.  The first two years are
to be served in local custody and the last two years on supervised release.  Defendant was ordered to pay an attorney fee
of $119.50 and a booking fee of $450.34.

            On
May 17, 2012, in a closed hearing held under People v. Marsden (1970) 2 Cal.3d 118, defendant sought to withdraw
his plea on the ground that he “was kicking methadone . . . [and]
I was not all in my right mind when I took the plea.  I was hoping for a drug program because I am
here for a drug charge mostly.  I just jumped
on everything.  When I kick meth, and I
haven’t—I didn’t sleep from three weeks to a month.”  Defense counsel stated that he “was not aware
if there was anything where Mr. Moreno was still not capable of making a
decision.”  The trial court relieved
defense counsel and appointed conflict counsel for the specific purpose of
addressing defendant’s request to withdraw his plea.

            On
June 1, 2012, the conflict counsel informed the court that the court no longer
had jurisdiction to hear a motion to withdraw the plea.  Counsel also stated that he had filed a
notice of appeal earlier that day.  The
matter was taken off calendar.  This
appeal followed.  The trial court granted
a certificate of probable cause.

>Discussion


1.     
 >Ineffective Assistance of Counsel

Defendant contends
his counsel appointed at the Marsden
hearing was ineffective because, although he accurately told the trial court it
was without jurisdiction to consider a statutory motion to withdraw the plea,
he failed to challenge the guilty plea by filing in the trial court either a
petition for writ of habeas corpus or a petition for writ of error coram nobis.

A defendant who
has entered a guilty plea may move to withdraw the plea, upon a showing of good
cause, at any time before judgment has been entered.  (People
v. Sandoval (2006) 140 Cal.App.4th 111, 123.)  Here, judgment was entered on April 11, 2012,
the date defendant was sentenced. 
Therefore, counsel was correct that the trial court on June 1, 2012, was
without jurisdiction to hear such a motion.

The question here,
then, is whether counsel was ineffective when it failed to challenge the guilty
plea by filing either: 1) a petition for writ of habeas corpus on the ground
that previous defense counsel was ineffective for failing to recognize
defendant’s compromised condition when he entered the guilty plea; or 2) a
petition for writ of error coram nobis on the ground that defendant’s
compromised condition constituted a new fact about which he could not have
known because of that very compromised condition.

To establish
ineffective assistance of counsel, defendant must prove that he received
representation below an objective standard of reasonableness and that there is
a reasonable probability he would have received a more favorable result but for
the deficient representation.  (>People v. Dennis (1998) 17 Cal.4th 468,
540-541; see also Strickland v.
Washington (1984) 466 U.S. 668, 687-688.) 
In demonstrating prejudice, defendant “must carry his burden of proving
prejudice as a ‘demonstrable reality,’ not simply speculation as to the effect
of the errors or omissions of counsel.” 
(People v. Williams (1988) 44
Cal.3d 883, 937.)  Where, as here, a
claim of ineffective assistance of counsel is raised on direct appeal, the
facts supporting both deficiency and prejudice must appear in the appellate
record.  (People v. Gray (2005) 37 Cal.4th 168, 207.)

First, we note
that conflict counsel was appointed for the specific purpose of assisting
defendant in the possible preparation of a motion to withdraw the plea, not to
file either type of petition.  The trial
court specified at the Marsden
hearing that it was appointing conflict counsel “for purposes of the motion to
withdraw plea.”

Specifically with
regard to counsel’s failure to file a petition for writ of habeas corpus, there
is no constitutional right to assistance
of counsel in state habeas corpus proceedings.  (People
v. Boyer (2006) 38 Cal.4th 412, 489, superseded by statute on another point
as stated in Barber v. Barnes (Dec.
16, 2012, SA CV 10-1837-JST)[2012 U.S. Dist., Lexis 179857].)

With regard to
counsel’s failure to file a petition for writ of error coram nobis, a
pre-condition to appointment of counsel as a matter of right is the “filing of
[a petition containing] adequately detailed factual allegations stating a prima
facie case.”  (People v. Shipman (1965) 62 Cal.2d 226, 232.)  Defendant has not filed a coram nobis
petition at all, and so has not established a right to counsel for that
purpose.  Defendant has shown no right to
counsel for either of these petitions, and so cannot succeed in a claim for
ineffective assistance of counsel for failing to file them.  (See In
re Jessica B. (1989) 207 Cal.App.3d 504, 513.)

Even if defendant
could establish ineffective assistance (and he cannot), he does not establish
prejudice from any failure on the part of defense counsel to file either writ
petition in the superior court.  This is
because defendant can still file a petition for writ of habeas corpus, even
during the pendency of this appeal.  (>In re Carpenter (1995) 9 Cal.4th 634,
646.)  Further, once this appeal is
resolved, defendant can file a petition for writ of error coram nobis.  (People
v. Haynes (1969) 270 Cal.App.2d 318, 320.)

Defendant can
establish neither that his counsel’s performance fell below an objective
standard of reasonableness, nor any prejudice therefrom.  For these reasons we reject his claim of
ineffective assistance of counsel.

2.       Attorney
and Booking Fees

Defendant argues
the trial court erred when it ordered defendant to pay a $119.50 attorney fee
and a $450.34 booking fee without first determining his ability to pay.

Following his
guilty plea, defendant was immediately sentenced.  When the trial court imposed the attorney fee
and booking fee, there was no objection by defendant.  The People argue that defendant forfeited any
objection to the booking fee by failing to object in the lower court.  Defendant argues that he can raise the issue
on appeal for the first time because the determination of such fees presents an
insufficient evidence claim that cannot be forfeited, citing to >People v. Pacheco (2010) 187 Cal.App.4th
1392, 1397-1401 (Pacheco).

            As
discussed below, defendant forfeited the attorney fee issue by failing to raise
it in the trial court, and so we affirm its imposition.  Regarding the booking fee, we address the
merits of the booking fee challenge but also affirm its imposition.  This is because this particular type of
booking fee does not require the trial court to determine defendant’s ability
to pay.  Although defendant did not
forfeit the right to raise this issue on appeal (see our discussion below
regarding the recent Supreme Court ruling in People v. McCullough that challenges to fees requiring a
determination of ability to pay are forfeited if not raised in the trial court),
the fact that the trial court did not need to determine defendant’s ability to
pay this particular type of booking fee means the court did not err in imposing
it without evidence of defendant’s ability to pay.

            In
People v. McCullough (April 22, 2013,
S192513)__Cal.4th__ (McCullough), our
Supreme Court recently overruled Pacheco
and held that a defendant who does not object to booking fees imposed under
Government Code section 29550.2 at the time they are imposed forfeits the right
to challenge the fees on appeal, even where the appeal is based on
insufficiency of the evidence.  (>McCullough at p. 2.)  This is because a trial court’s imposition of
this type of booking fee is based on factual findings of ability to pay, rather
than on legal conclusions.  The ability
to pay this booking fee does not present a question of law, but one of fact,
and formulating the claim as one of deficiency of the record does not transform
the claim to one of legal error.  (>McCullough at p. 16.)

A.    
 Attorney Fees Challenge Waived

Because the order
to pay attorney fees was based on defendant’s ability to pay,href="#_ftn1" name="_ftnref1" title="">^[1] we conclude that defendant also forfeited the href="http://www.fearnotlaw.com/">right to appeal the attorney fee order,
based on the rationale set forth in McCullough.

            B. 
Booking Fee Affirmed – No Need to Determine Ability to Pay

Next, we consider
the merits of defendant’s challenge to imposition of the $450.34 booking fee.

Government Code
sections 29550, 29550.1, and 29550.2 govern fees for booking or otherwise processing
arrested persons into a county jail.  To
a certain extent, the fees vary depending on the identity of the arresting
agency and the eventual disposition of the person arrested.

Arrests made by an
agent of a city “or other local arresting agency” are governed by Government
Code sections 29550, subdivision (a)(1) and 29550.1.  Under Government Code section 29550,
subdivision (a)(1), the county may charge the local arresting agency a booking
fee.  When it does so, under Government
Code section 29550.1, “The court shall, as a condition of probation,
order the convicted person to reimburse the [local agency].”  (Italics added.)

Arrests made by a
county agent or officer are governed by Government Code section 29550,
subdivision (c).  Under subdivision (c), if
the person is convicted of a crime related to the arrest, the county is
entitled to recover a booking fee from the arrestee, but the fee may not exceed
its actual administrative costs, including fixed overhead.

Government Code
section 29550, subdivisions (c), (d)(1) and (d)(2), specify what a court is to
do when it has been notified that the county is entitled to a booking fee.  Under subdivision (d)(1), the judgment of
conviction “may” include an order imposing the booking fee.  However, under subdivision (d)(2), if the
person convicted is granted probation, the fee becomes mandatory, although
subject to a finding of an ability to pay: “The court shall, as a
condition of probation, order the convicted person, based on his or her
ability to pay, to reimburse the county for
the . . . fee . . . .”  (Italics added.)

Finally, arrests
made by “any governmental entity not specified in [Government Code] Section
29550 or 29550.1” are governed by Government Code Section 29550.2, subdivision
(a).  In general, with one subtle
difference, the language of this provision is consistent with the language of
the others.  The difference is that,
under Government Code section 29550.2, all convicted persons—those sent to
prison as well as those granted probation—are subject to a mandatory booking
fee conditioned upon their ability to pay.

Subdivision (d)(1)
of Government Code section 29550 does not mention ability to pay.  The current matter is governed by Government
Code section 29550, subdivisions (c) and (d)(1), not Government Code section
29550.2.  Furthermore, since defendant
was not granted probation,href="#_ftn2"
name="_ftnref2" title="">^[2] under Government Code section 29550,
subdivisions (c) and (d)(1), a fee is due and must be included in the judgment
of conviction.  Accordingly, under
subdivision (d)(1) of Government Code section 29550, no ability to pay
determination is necessary.  Therefore,
although McCullough’s waiver holding
does not apply here, the trial court also did not err in assessing the booking
fee.

3.       Approval
of Residence Condition for Supervised Release

Among the
conditions of supervised released imposed by the court is a condition providing
that appellant must not only inform the probation officer of his place of
residence but that he must also “reside at a residence approved by the
probation officer.”  Defendant argues
this provision violates his constitutional rights to travel and freedom of
association, and is not narrowly tailored to further a compelling state
interest.

“Trial courts have
broad discretion to set conditions of probation in order to ‘foster
rehabilitation and to protect public safety pursuant to Penal Code section
1203.1.’  [Citations.]
 . . .  [¶]  However,
the trial court’s discretion in setting the conditions of probation is not
unbounded.”  (People v. Lopez (1998) 66 Cal.App.4th 615, 624.)  A term of probation is invalid if it “‘(1)
has no relationship to the crime of which the offender was convicted, (2)
relates to conduct which is not in itself criminal, and (3) requires or forbids
conduct which is not reasonably related to future
criminality . . . .’ 
[Citation.]”  (>People v. Lent (1975) 15 Cal.3d 481,
486, superseded on another ground by a voter enacted proposition as stated in >People v. Wheeler (1992) 4 Cal.4th 284,
290-295.)

“If
a probation condition serves to rehabilitate and protect public safety, the
condition may ‘impinge upon a constitutional right
otherwise enjoyed by the probationer, who is “not entitled to the same degree
of constitutional protection as other citizens.”’  [Citation.]” 
(People v. O’Neil (2008) 165
Cal.App.4th 1351, 1355.)  “[W]here an
otherwise valid condition of probation impinges on constitutional rights, such
conditions must be carefully tailored, ‘“reasonably related to the compelling
state interest in reformation and
rehabilitation . . . .”’ 
[Citations.]”  (>People v. Bauer (1989) 211 Cal.App.3d
937, 942.)

Here, defendant
pled guilty to transporting methamphetamine and possessing it for sale, along
with receiving stolen property.  Where
defendant chooses to live could directly affect his rehabilitation, in that he
could choose to live in a residence where drugs are bought, sold or used, which
would make it more difficult for him to refrain from drug possession.  The state has an interest in rehabilitating
defendant, and based on these facts, this interest is served by the carefully
tailored residence approval requirement.

For this reason,
the trial court did not abuse its discretion when it required defendant to
obtain approval for his place of residence.

Disposition

The judgment is
affirmed.

NOT TO BE
PUBLISHED IN OFFICIAL REPORTS

RAMIREZ                             

                                                P. J.

 

 

We concur:

 

McKINSTER                        

                                             J.

 

CODRINGTON                    

                                             J.